Terms & Conditions Of Supply For Krannich Solar
1. Supply
(a) Krannich Solar agrees to sell to the Customer, and the Customer agrees to purchase from Krannich Solar, Goods in accordance with these terms and conditions of supply (Conditions).
(b) In these Conditions:
(i) “Customer“ means any person, body corporate or entity which purchases or orders the Goods from Krannich Solar.
(ii) “Contract“ means a contract between Krannich Solar and the Customer for the sale of the Goods.
(iii) “Goods“ means all goods delivered by Krannich Solar to the Customer or to be delivered by Krannich Solar.
2. Application of conditions
(a) These Conditions apply to all orders placed by the Customer with Krannich Solar unless otherwise agreed in writing by Krannich Solar.
(b) Any order made by the Customer is not binding on Krannich Solar until accepted by Krannich Solar in writing in a confirmation of order.
(c) A Contract will be formed upon the written acceptance by Krannich Solar evidenced by Krannich Solar issuing a confirmation of order.
(d) The Customer acknowledges that it will be bound by these Conditions which will form part of the Contract.
(e) These Conditions supersede all terms and supply previously issued by Krannich Solar. To the extent any conflict exists between these conditions and any other documentation or correspondence forming part of the Contract, unless agreed in writing by Krannich Solar, these Conditions will prevail.
(f) Krannich Solar reserves the right to amend these Conditions at any time, and from time to time. The Customer may access these Conditions at any time (http:// au.krannich-solar.com/au/meta/terms-of-supply.html). The Customer may request a copy of the up-to-date version of the Conditions to be sent to the Customer at no charge.
(g) No terms stated by the Customer in making an order will be binding upon Krannich Solar unless expressly accepted in writing by a duly authorised officer of Krannich Solar.
3. Orders
(a) Krannich Solar requires that any order for Goods must be in writing.
(b) Krannich Solar reserves the right, in its sole discretion, to decline any order or part thereof. Any order or part thereof not accepted is deemed cancelled.
(c) An order accepted by Krannich Solar in a confirmation of order cannot be cancelled by the Customer. No application for cancellation or delay in delivery will be considered unless made by the Customer in writing to Krannich Solar. Krannich Solar, in its sole discretion, may consider an application by the Customer for cancellation or delay in delivery.
4. Price
(a) Subject to clause 4
(b) and unless Krannich Solar advises in writing, the price for the Goods:
(i) is as set out in the confirmation of order and is exclusive of GST; and
(ii) does not include the costs of delivery of the Goods, packaging costs, trans port insurance and all other costs, charges or expenses in relation to delivery which are payable by the Customer.
(b) If between the date of confirmation of order and the issue of an invoice, there is an increase in the cost to Krannich Solar of supplying the Goods which is beyond the control of Krannich Solar, then Krannich Solar may increase the amount of the invoice in line with the increase in cost.
5. Payment
(a) The Customer must pay for the Goods in advance, unless otherwise agreed in writing by Krannich Solar. The Customer may make payment by transfer, or cash payment or in any manner otherwise agreed in writing by the parties.
(b) If payment terms are agreed in writing by Krannich Solar, Krannich Solar will invoice the Customer upon delivery of the Goods.
(c) Unless otherwise agreed in writing by Krannich Solar, payment by the Customer to Krannich Solar will be made on or before 14 days from the date upon which the invoice was issued. Time for payment is of the essence of the Contract.
(d) Where payments are overdue, Krannich Solar may, at its option, either cancel orders or suspend delivery of outstanding Goods under clause 9.
(e) If the invoice is not paid by the due date then in additional to any other rights of Krannich Solar, interest will accrue on that amount from the date of delivery of the Goods until the price is paid in full. Interest will be paid at a rate of 12% per annum. Interest will accrue daily and be payable on demand.
(f) If the Customer defaults in payment or breaches these Conditions then it will be liable for all costs incurred by Krannich Solar and will indemnify Krannich Solar against any loss, liability, charge, expense, outgoing or payment which Krannich Solar suffers, incurs or is liable for in respect of the recovery of monies owing by the Customer to Krannich Solar.
(g) Krannich Solar reserves its rights to request at any time bank guarantees or some other form of security if Krannich Solar considers the terms of payment for any Goods delivered to the Customer by Krannich Solar have not been strictly adhered to by the Customer, or Krannich Solar has reasonable concerns about the Customer’s ability to pay for the Goods.
6. Delivery
(a) Dates for delivery of the Goods for will be notified by Krannich Solar to the Customer and are at all times subject to availability of the Goods from Krannich Solar’s suppliers.
(b) Unless otherwise agreed in writing by Krannich Solar, delivery will be EXW Incoterms 2001 from 96 Lambeck Drive Tullamarine. The Customer must collect the Goods within 5 working days from the date of delivery confirmed by Krannich Solar.
(c) Krannich Solar reserves the right to make deliveries of any order by instalments in which case each instalment will be deemed to be the subject of a separate contract governed by these Conditions for which the Customer must separately pay.
(d) If the Customer requests, and Krannich Solar agrees to deliver the Goods to a location nominated by the Customer, all associated costs (including the costs incurred by Krannich Solar effecting transport insurance on behalf of the Customer) are payable by the Customer, and delivery will be at the Customer’s risk.
(e) Upon receipt of the Goods, the Goods must be unloaded by the Customer immediately and the Customer must confirm the Goods have been received in accordance with the description and delivery quantity set out in the delivery receipt. The Customer must note any deviations or visible defects on the delivery receipt and must identify the licence number. The Customer must also notify Krannich Solar in writing immediately (by fax or email) of any defects that are detected.
(f) If, due to any act, matter or thing beyond the control of Krannich Solar delivery cannot be effected, Krannich Solar, in its sole discretion, may store the Goods at the Customer‘s risk and expense or take such other steps as it considers appropriate.
(g) Krannich Solar reserves the right to withhold deliveries if:
(i) Krannich Solar, in its sole discretion, considers that the financial condition of the Customer so warrants and that such action is advisable to protect Krannich Solar‘s interests; or
(ii) the terms of payment for any Goods are not strictly adhered to by the Customer.
7. Defects, warranties and liability
(a) Notification of damages to Goods not visible upon delivery must be submitted to Krannich Solar within 3 days. Later notices of visible defects cannot be used to form a basis of a claim by the Customer, except where the Customer has statutory rights that cannot be limited.
(b) In the case of hidden defects, the Customer shall submit a written notice of defects as soon as reasonably practicable following discovery. A notice of defect can only form a basis for a claim if it has been forwarded as soon as reasonably practicable after the defect was discovered.
(c) The Customer acknowledges that the Goods may contain minor deviations, including deviations from the colour or size of the Goods as set out in the confirmation of order, or deviations which are generally deemed acceptable according to usual commercial standards, and such minor deviations will not constitute valid grounds for submitting complaints.
(d) Certain guarantees in relation to the supply of goods implied by the Australian Consumer Law cannot be limited or excluded. To the extent Krannich Solar are able to at law, Krannich Solar exclude all express or implied representations, conditions, warranties and terms relating to the supply or the Contract except those set out in this Contract.
(e) Subject to clauses 7(a) and7(d), Krannich Solar‘s liability for any breach of any implied condition, warranty or right in connection with the supply of Goods is limited to one or more of the following (at the election of Krannich Solar):
(i) repair, replacement of the Goods or supply of equivalent goods;
(ii) payment of the cost of replacing the Goods or acquiring equivalent goods.
(f) Repair of replacement of the Goods under clause 7(e) is subject to the following:
(i) if the Goods have been installed, that installation and maintenance of the Goods took place under normal conditions, in accordance with the Goods specifications and installation instructions and in a manner in which it may be reasonably expec ted that the Goods will properly perform;
(ii) except as authorized by this contract the Customer must not have altered the Goods in any manner, or have authorized any other person to do so; and
(iii) no person must have tampered with or attempted to repair the Goods without Krannich Solar’ consent.
(g) Subject to this clause 7, and despite any implication arising from any other provisions of these Conditions:
(i) to the fullest extent permitted by law, Krannich Solar will only be liable for de fective Goods if the Customer notifies Krannich Solar in writing of the defective Goods within three (3) days after the date of delivery and if Krannich Solar accepts such liability;
(ii) Krannich Solar is not liable to the Customer, its servants, agents or contractors, in contract, in tort (including negligence), under any statute (to the extent permitted by law) or otherwise for, or in respect of, any indirect or consequential loss or damage including without limitation financial loss or expense including loss of opportunity, loss of profits or loss of goodwill suffered by the Customer or any other person arising directly or indirectly out of or in any way attributable to the Goods, or their delivery, or the performance of the Contract for the sale of the Goods upon these Conditions even if that loss or damage was in the contemplation of the parties at the time of entry into the Contract; and
(iii) the Customer must not assign claims against Krannich Solar to a third party.
8. Risk and title
(a) Risk in the Goods passes to the Customer as soon as Krannich Solar has delivered the Goods by making the Goods available for collection by a transport company, freight forwarder or any other natural or legal person which has been commissioned with the transport of the Goods.
(b) Property in and title to the Goods remain with Krannich Solar until the Customer has paid Krannich Solar the entire purchase price for the Goods and any other money that the Customer may owe to Krannich Solar (under this Contract or any other contract).
(c) The Customer may sell or otherwise dispose of the Goods in the ordinary course of the Customer’s business.
(d) Where the Customer disposes of the Goods before payment to Krannich Solar, the sale proceeds of such disposal are the property of Krannich Solar and the Customer holds the proceeds on trust for Krannich Solar.
(e) In addition to the above, in the event of sale of the Goods to another customer, the Customer, in his position as a fiduciary, must assign to Krannich Solar the benefit of any claim against the customer.
(f) Krannich Solar may, without prior notice, enter the Customer’s premises or elsewhere within business hours and seize any Goods which have not been paid for by the due date for payment and the Customer waives the right to receive any statutory or Personal Property Securitas Act 2009 (Cth) (“PPS Act”) Notice.
(g) While the Goods remain the property of Krannich Solar, the Customer agrees:
(i) to store the Goods separately at the Customer’s premises so they can be easily identified;
(ii) to not cause the Goods to lose their identifiable character or be interming led with other Goods in any way by any process of its own or by a third party, except with Krannich Solar’s prior written consent;
(iii) that it has no right or claim to any interest in the Goods to secure any liquida ted or unliquidated debt or obligation that Krannich Solar owes to the Customer;
(iv) that it cannot claim any lien over the Goods.
(v) to not create any absolute or defeasible interest in the Goods in relation to any third party except with Krannich Solar’s prior written consent;
(vi) to provide Krannich Solar access to the premises where the Goods are stored to enable Krannich Solar to inspect and/or seize the Goods; and
(vii) to: (A) not allow any person (other than Krannich Solar) to have or acquire any security interest in the Goods; (B) insure the Goods for their full insurable value or replacement value (whichever is higher) with an insurer licensed or authorised to conduct the business of insurance in the place where the Customer carries on busi ness; and (C) not remove, deface or obliterate any identifying mark or number on any of the Goods.
(h) The Customer acknowledges and agrees the Contract is a security contract for the purposes of the PPS Act and that Krannich Solar may register its security interest in the Goods and their proceeds as a purchase money security interest on the register established under the PPS Act.
(i) The Customer agrees to do all such things, and execute all such documents as Krannich Solar may reasonably require to register the security interest.
(j) Where the PPS Act applies to action taken by Krannich Solar in relation to the Goods, the Customer waives its right to receive any notices required under section 95, 118, 121, 130, 132 or 135 of the PPS Act.
(k) The Customer waives its rights under section 157 of the PPS Act to receive notice of a verification statement.
9. Suspension and termination
(a) Without prejudice to any of its other rights, powers or remedies, Krannich Solar may suspend orcancel any order for the delivery of Goods and terminate any contract governed by these Conditions if:
(i) the terms of payment for any Goods delivered to the Customer by Krannich Solar have not been strictly adhered to by the Customer;
(ii) the Customer defaults under any of its obligations under these Conditions;
(iii) the Customer is misleading or deceptive in respect of its creditworthiness;
(iv) the Customer becomes insolvent, commits an act of bankruptcy or, being a company, a liquidator, provisional liquidator, receiver, receiver and manager, administrator or official manager is appointed in respect of the Customer, a mortgagee goes into possession of the Customer‘s assets or business, an applica tion is made to appoint a liquidator or to have the company wound up, the Customer is made subject to the supervision of a court or enters into a scheme of arrangement with its creditors or if anything analogous occurs in respect of the Customer, then Krannich Solar will be released from all liability under the Contract.
(b) Krannich Solar will be entitled to receive payment for all Goods delivered up to the effective date of termination. Termination of a Contract is without prejudice to the rights of Krannich Solar accruing up to the date of termination.
10. Confidentiality
(a) The Customer agrees to keep confidential all cost estimates, drawings and all information marked as ‘confidential’ supplied to it by Krannich Solar and only disclose such information to those officers, employees and contractors who need to know and who are subject to binding obligations of confidence, and to only use it for the purposes of carrying out its obligations under the Contract.
(b) The obligations in clause 10(a) will not apply to information which is in, or which comes into, the public domain other than as a result of a breach of an obligation of confidence.
(c) Any disclosure of confidential information to third parties requires Krannich Solar’s prior written approval,
(d) All confidential information must be returned to Krannich Solar upon request, or if requested by Krannich Solar, destroyed.
11. Intellectual property
(a) ‘Intellectual Property Rights’ means patents and registered designs as well as other intellectual property rights, including copyright, and other technical, business or similar information (including all cost estimates, designs, documents and other materials) relating to the Goods
(b) The supply of Goods to the Customer does not constitute a transfer of any Intellectual Property Rights in the Goods or any part thereof.
(c) The Customer must not directly or indirectly infringe or authorize the infringement of the Intellectual Property Rights.
12. Krannich Solars obligations
(a) Notwithstanding any other provision of these Conditions, if the Customer breaches a term of a Contract, Krannich Solar is not bound to perform its obligations under that Contract until the breach is remedied by the Customer.
(b) Krannich Solar is not liable for any failure to observe its obligations under these Conditions where such failure is wholly or substantially due to a force majeure event, which includes any cause beyond the control of Krannich Solar, including strike, industrial action, war, sabotage, terrorist activity, national emergency, blockade or governmental action, inaction or request, and act of God.
13. Miscellaneous 13.1 Interpretation
(a) A reference to:
(i) words in the singular include the plural and vice versa;
(ii) any gender includes the other genders;
(iii) a person includes a partnership, joint venture, unincorporated association, corporation and a government or statutory body or authority;
(iv) any legislation includes subordinate legislation under it and includes that legislation and subordinate legislation as modified or replaced;
(b) an obligation includes a warranty or representation and a reference to a failure to comply with an obligation includes a breach of warranty or representation; and
(c) “includes” means includes without limitation.
(d) Headings of clauses must not be used in the interpretation of this Contract.
13.2 GST
(a) In this clause GST and GST Act have the meanings given in the A New Tax System (Goods and Services) Act 1999 (Cth) and the expressions input tax credit, supply, tax invoice, recipient and taxable supply have the meanings given to those expressions in the GST Act.
(b) Unless otherwise expressly stated, all amounts stated to be payable in this contract are exclusive of GST.
(c) If GST is imposed on any supply made under or in accordance with this Contract, the recipient must pay to the supplier an additional amount equal to the GST payable on or for the taxable supply.
(d) Payment of the additional amount will be made to be made in accordance with this agreement, subject to the provision of a tax invoice.
(e) If this Contract requires a party to pay for, reimburse or contribute to any expense, loss, indemnity or outgoing (‘reimbursable expense’) suffered or incurred by another party, the amount required to be paid, reimbursed or contributed by the first party will be the sum of:
(i) the amount of the reimbursable expense less the input tax credits (if any) to which the other party is entitled in respect of the reimbursable expense; and
(ii) if the other party’s recovery from the first party is a taxable supply, any GST payable in respect of that supply.
13.3 General
(a) This Contract is governed by the laws of Victoria and the parties submit to the jurisdiction of the courts of Victoria and any courts which have jurisdiction to hear appeals from any of those courts.
(b) The documents comprising this Contract constitute the entire contract between the parties and supersede all previous oral or written communications between the parties.
(c) Krannich Solar may subcontract any part of its obligations without obtaining the consent of the Customer.
(d) This Contract or these Conditions may only be varied, amended or extended by written agreement of Krannich Solar. No waiver of any breach of this Contract or of any of the terms will be effective unless the waiver is in writing and signed by the party against whom the waiver is claimed.
(e) The Customer shall not, without the prior written consent of Krannich Solar, transfer or assign any of its rights or obligations under this Contract.
(f) The United Nations Convention on contracts for the International Sale of Goods does not apply to this Contract.
(g) If any of the provisions of this Contract are held by a court of competent jurisdiction to be invalid or otherwise unenforceable that provision may be severed from this Contract and the remainder of this Contract will continue to be effective and valid notwithstanding such severance.
Status 6/2012